Praetorianism & Common Law in Post-Colonial Settings: Judicial Responses to Constitutional Breakdowns in Pakistan

The successive constitutional crises that confronted the Pakistani courts were not of their own making. But the doctrinally inconsistent, judicially inappropriate, and politically timid responses fashioned by these courts ultimately undermined constitutional governance. When confronted with the question of the validity and scope of extra constitutional power, the courts vacillated between Hans Kelsen\u27s theory of revolutionary validity, Hugo Grotius\u27s theory of implied mandate, and an expansive construction of the doctrine of state necessity. A more principled and realistic response would have been to declare the validity of extra constitutional regimes a nonjusticiable political question. Besides ensuring doctrinal consistency, a refusal to furnish extra constitutional regimes with judicially pronounced validity may well have discouraged praetorian encroachment upon constitutional governance. A consistent refusal to pronounce upon nonjusticiable political questions might have promoted a democratic constitution building process by implicitly reminding the body politic of its primary responsibility to build and preserve constitutional orders. Furthermore, during the periods when these courts had the opportunity to exercise judicial review under a constitution, they failed to enunciate a consistent and coherent standard of review. By misapplying the political question doctrine, the courts implied that democratically elected legislatures possess unfettered legislative power. By refusing to fashion judicial checks against potential tyranny of the majority, the courts acquiesced in the contraction of fundamental rights and the diminution of federalism during the Fourth Republic. This facilitated the demise of the Fourth Republic following yet another military usurpation of power. A better approach would have been for the courts to invalidate any legislation which jeopardized the basic structure and essential features of the constitution